Friday, December 19, 2014

The Kentucky Health Cooperative made news today by sucking up another $65 million "loan" from federal taxpayers just one year after being formed as an ObamaCare health insurer with a $58.8 million loan. But this evidence of wild mismanagement is just the tip of the iceberg.

The Kentucky Health Cooperative, by far our state's biggest ObamaCare insurer, is systematically removing health insurance agents from the Exchange who warn consumers about the co-op's questionable business practices. Several hundred health insurance agents previously appointed to represent the co-op's ObamaCare policies have seen their appointments cancelled and agents seeking to do business under the new regime are being turned away, leaving consumers without an advocate when the co-ops' nonexistent customer service and increasing deductibles become apparent.

"Gov. Beshear said at the beginning of ObamaCare that Kentuckians needed to be running ObamaCare in Kentucky, but all that has done is fill the pockets of his friends like co-op CEO Janie Miller," said Tea Party activist David Adams. "And now the very Kentuckians who were in place to blow the whistle on abusive tactics used by the co-op are being removed. It's yet another outrage from a group of bureaucrats with an enormous capacity for outrageous behavior."

Thursday, December 18, 2014

Kentucky Medicaid Obamacrats have started threatening doctors who don't offer and pay for language interpretation services for people who don't speak English.

The cost for such an interpreter is at least $80 and the amount is not reimbursable by Medicaid. Providers have been told the rationale for this is that Medicaid views everyone who doesn't speak English to be disabled.

"Under ObamaCare, we have added almost 900,000 Kentuckians to Medicaid which the state can't afford and now we're bringing our nation's failed immigration policy into the mess," said Tea Party activist David Adams. "Shutting down the Medicaid expansion in Kentucky must be one of our highest priorities."

Defendants move for dismissal of Plaintiff’s Complaint by
attempting to distract the Court from noticing the only meaningful fact in the
present action: the current Executive Branch Budget does not fund the operation
of a state-based health insurance exchange under ObamaCare (or the Affordable
Care Act or ACA) and further specifically prohibits such expenditures as would
perpetuate it.

Governor Beshear has attempted to
create some form of taxing and spending mechanism for implementing an optional
state-based ObamaCare exchange in Kentucky using three separate and distinct
Temporary Reorganization Executive Orders, one each in 2012, 2013 and 2014,
which Defendants notably fail to mention in their Motion to Dismiss. KRS
12.028(5) mandates “subject matter of each executive order relating to
reorganization shall be presented in the General Assembly in a separate bill.”
This did not happen with Executive Order 2012-587, which attempted to create “Office
of the Kentucky Health Benefit Exchange,” necessitating its expiration and
withdrawal and further, according to statute, forbidding its replacement prior
to the next succeeding General Assembly. This prohibition was ignored by
Governor Beshear, who immediately upon its expiration issued Executive Order
2013-418. This second Order sought to create the “Office of the Kentucky Health
Benefit Exchange” and House Bill 505 was subsequently introduced in the 2014
General Assembly. Near the same time, the Governor’s budget request sought
appropriations for “Kentucky Health Benefit Exchange.” The bill was rejected by
the General Assembly and the 2013 Executive Order subsequently expired. Again,
Governor Beshear ignored the plain language of KRS 12.028(5) which states “If
the General Assembly fails to enact a temporary reorganization plan, the
Governor, the Kentucky Economic Development Partnership as created in KRS
154.10-010, and other elected state executive

officers shall
not effect the plan prior to the next succeeding session of the General Assembly.”

Executive Order 2014-561 as issued on June 30, 2014
abolished Kentucky Access, the supposed taxing and funding mechanism for “Kentucky
Health Benefit Exchange” and placed it inside something called “Kentucky Health
Benefit and Health Information Exchange” for which the General Assembly
provided no funding in the Executive
Branch Budget for Fiscal Years 2014-15 and 2015-16, stating in the budget
itself “no executive order related to the ACA has been codified by the General
Assembly,” “no provision within this Act shall be deemed, adjudged, or
constructed as being a recognition, finding or admission of the General
Assembly’s approval of the operation of the ACA in Kentucky,” and “The Governor
is expressly prohibited from expending any General Fund resources on any
expenditure directly or indirectly associated with the Health Benefit Exchange.”
It could not be any more clear that the General Assembly has repeatedly and forcefully
denied approval for state spending and taxation to support ObamaCare in
Kentucky.

Denying Defendant’s Motion to Dismiss and further granting
Plaintiff’s Prayer for Relief in Complaint is completely consistent with recent
case law. “The mere existence of a statute that can be implemented only if
funded does not mandate an appropriation.” SeeFletcher v. Commonwealth (Ky. 2005) 163 S.W. 3d 852. “The purpose of
Section 230 of the Kentucky Constitution, the statutes, and CR 54.04 is ‘to
prevent the expenditure of the State’s money without the consent of the
Legislature.’” See Kentucky Retirement Systems v. Foster (Ky. App. 2010) 338
S.W.3d 788 quoting Ferguson v. Oates 314 S.W. 2d 518, 521 (Ky. 1958) “It
is a purpose consistent with the governmental separation of powers and
reinforces the proper role of the judiciary.”

No
funding exists for “Kentucky Health Benefit and Health Information Exchange” in
the Executive Branch Budget Bill. Kentucky Access, the
supposed funding and taxing mechanism for continued operation of ObamaCare in
Kentucky is attached to the same unfunded entity created by Executive Order
2014-561 and, in any event, its contents are not available to be spent on
further operation of ObamaCare in Kentucky because its reason for existing, per
KRS 304.17B-005, “implementing an acceptable alternative mechanism within the
meaning of 42 U.S.C. sec. 300gg-44(a)(1)” has been accomplished with passage of
the “Affordable Care Act.” “The surplus remaining after the object of a levy
has been accomplished must be treated as part of a general fund.” SeeFannin v. Davis (Ky. 1964)
385 S.W.2d 321. Again, legal authority for such General Fund expenditures as
Defendants seek does not exist, by explicit direction of the General Assembly.
Further, State Group Health Insurance Funds for state employees exist in
General Funds, whose forbidden appropriations present an inescapable problem
for state employees charged with implementing “the ACA.”

Lastly, Defendants claim
Plaintiff’s request for injunctive relief is deficient because it fails to
comply with CR 65.04, which governs motions for temporary injunctions. Plaintiff has not yet
filed such a motion, but will comply with requirements of same at such time.

Respectfully submitted,

David Adams

121 Nave Place

Nicholasville KY 40356

859-537-5372

Plaintiff

CERTIFICATE OF SERVICE

This certifies the forgoing was served this 17th day
of December, 2014 by personal delivery upon Patrick R. Hughes, Dressman
Benzinger LaVelle PSC, 207 Thomas More Parkway, Crestview Hills, Kentucky
41017-2596.

Friday, December 12, 2014

Kentucky is about to become a testing ground for a revolutionary approach to reporting news that does not bode well for Obamacrats or the mainstream media.

A former long-time Frankfort reporter will head up a statewide newspaper without advertising, subscriptions or left-wing biased reporting. Roger Alford, communications director for the Kentucky Baptist Convention, will be the paper's editor and publication will begin on an undetermined date after the first of the year.

"Kentuckians are starving for credible public affairs information that doesn't push a pro-Democrat agenda," said tea party activist David Adams. "I think this new paper will have a quick and decisive impact on Frankfort and will inspire others to spring up around the country and around the world. To me this is taking full advantage of the information age. We are ready to starve the beast that is big government and this unbiased, uncontrolled news source gives us the strength to get it done."

More details will be made available in the days and weeks ahead. Stay tuned...

Tuesday, December 09, 2014

At a state government committee meeting next week, Gov. Beshear's administration will refuse to divulge spending data related to the Affordable Care Act in keeping with federal officials' strategy of avoiding transparency that would help citizens judge our progress on health reform in Kentucky.

Beshear administration staff have refused repeated attempts of members of the Interim Committee on Health and Welfare to ascertain current spending totals of state dollars on Medicaid benefits under ObamaCare and they intend to do the same thing at the next meeting on December 17.

"Gov. Beshear said at the beginning of ObamaCare there were 640,000 Kentuckians without health insurance, but the executive director of the exchange answered an open records request by stating they have signed up over 800,000 Kentuckians on Medicaid," said David Adams, Tea Party activist. "Blowing the budget on ObamaCare Medicaid is something we need to get a handle on before it is too late. Please call Gov. Beshear at 502-564-2611 and demand that he come clean about our Medicaid spending right away."

Obamacrat economist Jonathan Gruber was only trying to make himself look smart, he said.

Gruber told the House Oversight and Government Reform Committee today he is sorry for calling Americans stupid and bragging about the need to lie about ObamaCare in order to pass it, but that he himself was lying when he said he wrote part of ObamaCare and that he was lying when he spoke previously the political benefits of secrecy and obfuscation in constructing ObamaCare. He further insisted ObamaCare is working well and when asked what he would change about it, he would only say that we should give it more time to "work."

And he also said that his lies were not lies. Thank you, Doctor Gruber.

Defendants base the bulk of Motion to Dismiss on
their characterization of Complaint as being speculative and conclusory, making
light of Plaintiff’s use of the term “illegal spending” while attempting to
confuse it with state spending whose legality is properly established. Plaintiff
is a taxpaying citizen whose right to challenge the legality of officials’
actions is well established. SeeRussman
v. Luckett 391 S.W.2d 694 (Ky. 1965), which explains “public officials …
are bound to perform their duties exactly as the Constitution and the statutory
laws of this Commonwealth require when the command is clear.” Defendants deny Plaintiff’s
characterization of improper attempts to spend state funds but, despite
including for the record the entire Executive Branch Budget, fail to adequately
address the main issues in the Complaint namely, “illegal spending” and “prior
and proper legislative approval,” both of which were included in Complaint. Indeed,
while Defendants complain in Section 1 of their Motion that “the pleading fails
to provide any details about these allegedly illegal transactions, such as the
amount, date or recipient of any such expenditure,” Defendants noticeably
neglect to mention even once any of the three Executive Orders representing the
only actions remotely attempting to legally make available Restricted Funds in
question (available on the Secretary of State’s web site at
www.apps.sos.ky.gov/Executive/Journal.) The General Assembly explicitly sought in
KRS 12.028 to ensure constitutional and statutory limitations on Defendants’
power were maintained while making available requested funds should the aims of
Defendants be met with necessary legislative approval. Those aims, namely Defendants’
desire to move Restricted Funds and, one presumes, taxing authority from “Division
of Kentucky Access within the Department of Insurance” when its statutory purpose
was accomplished to the General Fund and then on to “Division of Kentucky
Access within the Office of Health Benefit and Health Information Exchange” in
violation of the clear Executive Branch Budget denial of any General Fund
resources on any expenditure directly or indirectly associated with the Health
Benefit Exchange. Failure of Defendants to recede from their prior plans once
they definitely in every way became prohibited brought about this action.

Defendants admit in Section 3 that for purposes
of their motion “allegations in the pleading are accepted as true,” further stating
“they must be sufficient to place the defending party on notice as to the cause
of the action.” From this, Defendants find fault with Complaint’s lack of
specific expenditures when the executive actions bringing about Complaint were explicit
commitments by Defendants to perform actions which are in fact “illegal.”

Defendants express confusion at contents of the
Complaint and deem it “speculative,” but admit the issues therein are
justiciable by failing to cite even a single case, provision or fact definitively
confirming their claim that all spending in question conforms to law. As such,
Plaintiff respectfully requests this Court to deny their Motion to Dismiss.

Defendants conclude their argument by quoting
extensively from CR 65.04, relating to Temporary Injunctions, and ask the Court
to find the Complaint defective despite the fact that a Temporary Injunction is
not requested. This must be rejected as well.

II.RELEVANT
PORTIONS OF BUDGET

The current Executive Branch Budget provides for
expenditure of Restricted Funds in the amount of $14,021,200 in Fiscal Year
2014-15 and $23,404,900 in Fiscal Year 2015-16. KRS 48.010(13)(f) defines the
term Restricted Fund: “This fund shall consist of budget unit receipts
restricted as to purpose by statute.” This language presents a complex, yet fatal
problem for Defendants. With Executive Order 2014-561, Governor Beshear
attempted to overcome the will of the legislature which had refused to ratify
his prior two attempts to create the Kentucky Health Benefits Exchange in each
of the two years preceding, thereby rejecting optional provisions of ObamaCare.
Beshear did this by attempting in the Order to place the Division of Kentucky
Access into the Exchange in order to use its surplus funding and taxing
authority to provide state funds for the Exchange. Kentucky law does not allow him to do this, as will be
detailed in the next section of this Reply.

Complaint Section
10 quotes Budget language reiterating the General Assembly’s repeated
disapproval of executive orders, administrative regulations, proposed statutes
and provisions effecting ObamaCare and expressing the General Assembly’s
intention to limit Beshear’s unilateral implementation. Complaint Section
11 quotes Budget language absolutely forbidding General Fund spending even
indirectly related to the Exchange. Complaint Section 12 quotes Budget language limiting General Fund spending
for the Medicaid Expansion. Given this preponderant disapprobation, one finds
it an inescapable conclusion that creating a Budget entry for nonexistent
Restricted Funds requested by Defendants, perhaps in anticipation of a
potential revised statute but in no instance as a replacement for one, would
not conflict with subsequent disapproval of the creation of such funds in any
form or clear confirming language to that effect in the same Budget.

III.LEGAL
ARGUMENT

This
Court faces tremendous pressure to construe Defendants’ executive actions
liberally and it should. Executive management of the Commonwealth’s government
is a difficult job and deference to the Chief Executive’s aims is understandable
and not without precedent. Nevertheless, Kentucky law simply prohibits
Defendants from continuing on their current course regarding implementation of
ObamaCare.

Governor
Beshear’s Executive Order 2012-587 attempted to temporarily create the Exchange
for purposes of operating an optional state-based bureaucracy in the
implementation of ObamaCare. The Order admitted that state funds would be
necessary to provide full funding for operation of the Exchange as of January
1, 2015. It did not seek to create a funding source or taxing authority for
state funds required for use by January 1, 2015 by federal law. The 2013
General Assembly did not ratify the now expired Order and also did not create funding
or a taxing authority. Governor Beshear attempted to reverse this denial by the
General Assembly in part by issuing Executive Order 2013-418. Governor Beshear’s
Executive Order 2013-418 attempted again to temporarily create the Exchange for
purposes of operating an optional state-based bureaucracy in the implementation
of ObamaCare. The Order admitted that state funds would be necessary to provide
full funding for operation of the Exchange as of January 1, 2015. It did not
seek to create a funding source or taxing authority for state funds required
for use by January 1, 2015 by federal law. The 2014 General Assembly did not
ratify the now expired Order and also did not create funding or a taxing authority.
Governor Beshear attempted to reverse this denial in part by issuing Executive
Order 2014-561. Governor Beshear’s Executive Order 2014-561 attempted again to
temporarily create the Exchange for purposes of operating an optional
state-based bureaucracy in the implementation of ObamaCare, but before it did,
state Budget negotiations intervened.

Governor Beshear has attempted an intricate
game of musical chairs in reorganizing state government for three years running,
struggling with the fact the General Assembly has not and does not approve his
attempts to force the Commonwealth into ObamaCare implementation. But the music
stopped when he tried to shift Restricted Funds beyond his authority to do so.
Essentially, Beshear sought to use Kentucky Access funds and taxing authority
to pay for the Exchange. Kentucky Access was created in 2000 by KRS 304.17B-005
as part of the Department of Insurance. No subsequent legislation has changed
that, which is significant because accrued funds existing within Kentucky
Access existed as Restricted Funds. KRS 48.010(13)(f) defines “Restricted Fund”
as “budget receipts restricted as to purpose by statute.” Again, no statute has
repurposed or otherwise transferred Kentucky Access Restricted Funds proposed
in the Executive Branch Budget to fund the Exchange in 2014-15. Further, no
statute has created a new taxing authority to fund the Exchange in 2015-16 or
at any other time through Kentucky Access or otherwise. KRS 304.17B-021(1)
mandates that taxes levied for Kentucky Access “shall be used for the purpose of funding GAP losses and Kentucky
Access.” If we accept that one or more of Governor Beshear’s Executive
Orders have done away with Kentucky Access, then GAP losses no longer exist as
their purpose has been accomplished through the Affordable Care Act and also
the Kentucky Access program as it existed in the Kentucky Department of Insurance
pursuant to KRS 304.17B-005 no longer exists. The purpose of Kentucky Access
under the statute is “implementing an acceptable alternative mechanism within
the meaning of 42 U.S.C. sec. 300gg-44(a)(1) so that Kentucky may preserve the flexibility
over the regulation of health coverage allowed by federal law.” This purpose,
then, has also been accomplished through passage of the Affordable Care Act. In
this case such funds, restricted as to purpose by statute, are not eligible to
be transferred directly into another Restricted Fund, even one with a similar
name and similar purpose. “The surplus remaining after object of a levy has
been accomplished must be treated as part of a general fund.” SeeFannin v. Davis (Ky. 1964)
385 S.W.2d 321. “The surplus remaining after the object of a levy has been
accomplished is treated as part of the general fund … notwithstanding Section
180 of the Constitution of Kentucky, forbidding the diversion of taxes from the
purposes for which they were levied.” SeeField v. Stroube, 103 Ky 114, 44 S.W. 363.

If, however, we do not accept the Executive
Orders, then the Kentucky Access program still exists as in current statute and
the same Restricted Funds are not available to be transferred to the Exchange
thanks to Section 180 and no legally created funding mechanism exists to
provide for operating costs in the second year of the biennium or at any other
time. Either way, the original Kentucky Access Restricted Funds cannot be
transferred absent specific state legislation to fund ObamaCare as Defendants
have attempted to do. Defendants may certainly refine their argument to attempt
to make their official action stand before the Court, but they cannot pretend
that their CR 12.02(f) Motion to Dismiss maintains any weight. Again,
Defendants’ actions constitute illegal spending lacking prior and proper
legislative approval and cannot be countenanced.

Lastly, Defendants claim Plaintiff’s request
for injunctive relief is deficient because it fails to comply with CR 65.04,
which governs motions for temporary injunctions. Plaintiff has not yet filed
such a motion, but will comply with requirements of same at such time.

Respectfully
submitted,

David
Adams

121
Nave Place

Nicholasville
KY 40356

859-537-5372

Plaintiff

CERTIFICATE OF SERVICE

This certifies the forgoing was served this 5th
day of December, 2014 via U.S. Mail upon Patrick R. Hughes, Dressman Benzinger
LaVelle PSC, 207 Thomas More Parkway, Crestview Hills, Kentucky 41017-2596.